Defendant has moved to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), and, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Both parties have presented exhibits and affidavits to the Court which the Court has considered in deciding the matters before it. As the last sentence of Rule 12(b) provides, a motion to dismiss is to be treated as a motion for summary judgment whenever matters outside the pleadings are presented to and not excluded by the Court. Fed. R. Civ. P. 12. Accordingly, defendant's alternative motion will be treated as a motion for summary judgment. See Evanson v. United States, 878 F. Supp. 1, 2 n.3 (D.D.C. 1995); Szymkowicz v. Dist. of Columbia, 814 F. Supp. 124, 126 n.2 (D.D.C. 1993).

Summary judgment may be granted when the pleadings and evidence demonstrate there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Diamond v. Atwood, 310 U.S. App. D.C. 113, 43 F.3d 1538, 1540 (D.C. Cir. 1995). All evidence and the inferences drawn from it must be considered in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); White v. Fraternal Order of Police, 285 U.S. App. D.C. 273, 909 F.2d 512, 516 (D.C. Cir. 1990). If divergent inferences can be drawn from the material facts bearing upon an issue critical to the disposition of the case, or if the facts before the Court allow a reasonable jury to return a verdict for the nonmoving party, summary judgment cannot be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Alyeska Pipeline Serv. Co. v. E.P.A., 272 U.S. App. D.C. 355, 856 F.2d 309, 314 (D.C. Cir. 1988). By pointing out the absence of evidence to support the nonmoving party's case, the moving party can demonstrate there is no genuine issue as to any material fact, so it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). However, since proof of discrimination and disparate treatment is difficult for plaintiffs to establish, summary judgment motions in employment discrimination cases should be viewed with special caution. Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).

Plaintiffs have presented no empirical data or significant statistical evidence showing the UDP disproportionately impacted upon the female guards. They claim only that the UDP's conditions disproportionately impacted upon the female guards as evidenced by the fact that six female but no male guards were disciplined for violating the UDP. The fact that six females and no males were disciplined for violating the dress policy, even when viewed in the light most favorable to plaintiffs, does not give rise to an inference of disproportionate impact.

Such a finding would confuse the goals behind Title VII legislation with pure statistical evidence. Title VII protects classes defined by certain immutable traits identified by statute and possessed by certain individuals. Traits or factors specifically within an individual's control are not necessarily protected. All that plaintiffs' evidence shows is that six persons, who all happen to be female, chose not to comply with written and verbal orders. Arriving at work in compliance with a dress policy is a matter wholly within a person's control, unlike, for example, an intelligence test unrelated to job performance. See Mack A. Player, Employment Discrimination Law, § 5.41 at 388 (1988) ("Generally, rules relating to grooming do not adversely affect employment opportunities of other classes because such rules do not comprise irremovable obstacles to employment. The applicants can always change clothes or trim their hair"). In addition, plaintiffs' own evidence shows that at least 41 female guards worked at the NGA during the period the UDP was enforced. Only six were disciplined. Statistical disparities must be significant or substantial to show disparate impact. Without a significant statistical showing, no inference of disparate impact is warranted. Morgan v. Harris Trust and Sav. Bank of Chicago, 867 F.2d 1023, 1028 (7th Cir. 1989). In Morgan, the court found evidence showing that 25 employees were administered a polygraph exam, that five failed the test twice, that each of the five was black, and that each of the five was fired was not enough to establish a prima facie case. Here, evidence showing that six females and no males were disciplined for violating a work rule similarly fails to qualify as a significant statistical showing.
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Plaintiffs have failed to make out a prima facie case. Defendant's motion for summary judgment is granted as to plaintiffs' disparate impact claim.
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Plaintiffs have not presented direct evidence showing defendant was motivated by discriminatory gender considerations. Instead, they have elected to employ the familiar three-step model of proof available to Title VII plaintiffs set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under the McDonnell Douglas model, plaintiffs bear the "initial burden . . . of establishing a prima facie case" of gender discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981). Although McDonnell Douglas set forth the elements plaintiffs needed to show to establish a prima facie case in the hiring context specifically, the Supreme Court has stressed that elements of a prima facie case are flexible and must be adapted to the particular facts of the case at hand. Burdine, 450 U.S. at 253 n.6, 101 S. Ct. at 1094 n.6; McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S. Ct. at 1824 n. 13. Courts have modified the McDonnell Douglas elements accordingly, although neither the Supreme Court nor this Circuit has precisely defined the elements plaintiffs must show to establish a prima facie case when alleging disparate treatment in the enforcement of a facially neutral work rule such as the UDP plaintiffs challenge in this case.

However, this Circuit and other courts have determined that for plaintiffs to make out a prima facie case where they claim discrimination in the administration of disciplinary action, they must prove that employees outside of their protected group were not punished in a similar fashion. Plummer v. Bolger, 559 F. Supp. 324, 329 (D.D.C.), aff'd, 232 U.S. App. D.C. 263, 721 F.2d 1424 (D.C. Cir. 1983) (citing Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied, 449 U.S. 879, 101 S. Ct. 227, 66 L. Ed. 2d 102 (1980)); cf. Wilmington v. J.I. Case Co., 793 F.2d 909, 915 (8th Cir. 1986) (plaintiffs must show the discipline imposed on those in the protected group was harsher than that imposed on those comparably situated, but outside of the protected group); Moore v. City of Charlotte, 754 F.2d 1100, 1105-1106 (4th Cir.), cert. denied, 472 U.S. 1021, 105 S. Ct. 3489, 87 L. Ed. 2d 623 (1985) (plaintiffs must show that disciplinary measures enforced against them were more severe than those enforced against others similarly situated, but outside of the protected group).
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In light of the Supreme Court's admonition to adapt elements of the prima facie case to the particular facts of the case at hand, and because the Court finds that this case is very similar to the administration of disciplinary action cases, plaintiffs must show that they were similarly situated to the male guards and that defendant dissimilarly treated the two classes of employees in order to make out their prima facie case.

Plaintiffs' disparate treatment argument rests on this premise: although the NGA implemented a facially neutral dress policy that was to be uniformly applied, in fact, the UDP was applied in such a way as to allow male guards options not offered to plaintiffs, so that male guards could comply with defendant's order in ways plaintiffs could not. Although facially neutral, the policy was not applied evenhandedly to males and females, as females were held to a more exacting standard. In support of their claim, plaintiffs offer the following evidence:

(3) At least one male guard, Willie Wright,
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who wore his hair in a ponytail which extended to his waist, was allowed to place his hair inside his coat, so that the ponytail was not showing outside of the coat. (Pls.' Statement of Genuine Issues Attach. 4, Aff. of Willie Wright.)

(4) Sergeant Powell of the Guard Force told plaintiff Batson that because Wright was on another shift, nothing could be done concerning his compliance with the order. (Pls.' Statement of Genuine Issues Attach. 1, Aff. of Batson.)

These alleged facts, assumed true for purposes of ruling on defendant's summary judgment motion, show that at least one male guard and plaintiffs both had hair long enough to extend over the collar and styled so that it would, in fact, extend over the collar in violation of defendant's UDP on its face. These facts, if true, show that defendant treated plaintiffs and at least one male guard dissimilarly in that plaintiffs were told they would have to cut their hair in order to comply with the UDP. Thus, plaintiffs' evidence raises a presumption of discrimination and they have satisfied their burden of establishing a prima facie case.
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Under the McDonnell Douglas model, defendant must rebut the presumption of discrimination raised by plaintiffs' prima facie case by articulating "some legitimate, nondiscriminatory reason" that would explain the differential treatment of the female guards. McDonnell-Douglas, 411 U.S. at 802; accord St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2747 (1993); Burdine, 450 U.S. at 254, 101 S. Ct. at 1094. To satisfy his burden, defendant must explain why plaintiffs were told they would have to cut their hair to comply with the policy while male guards were not, and why Wright specifically was allowed to tuck his hair into his coat. For example, defendant might show Wright was treated differently based on his tenure of service and accompanying seniority within the guard force. Dissimilar treatment might also be justified on the basis of his exemplary past work record. See Mack A. Player, Employment Discrimination Law, § 5.43 at 392 (1988). Likewise, it may be that Wright works a night shift outside of public hours, and strictest compliance with the policy is not necessary when the guards will not be in public view.
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The Court recognizes plaintiffs' averments are somewhat vague and conclusory. The issues are not framed as squarely as the Court would prefer, and although plaintiffs have corrected some of the deficiencies in their complaint with affidavits lending specific factual support to their complaint's very general claims, defendant may have had difficulty isolating the precise nature of their disparate treatment claim. Nonetheless, defendant's denials do not operate as an articulation of a legitimate, nondiscriminatory reason for the dissimilar treatment of the plaintiffs and Wright.
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As noted, under Title VII law, plaintiffs' burden in establishing a prima facie case is not onerous. Although their evidence showing disparate treatment is far from overwhelming, it is enough to establish a prima facie case. For defendant to prevail on a motion for summary judgment, he must offer some legitimate, nondiscriminatory reason for why Wright was treated differently from plaintiffs. Defendant has not done so, and without defendant's legitimate reason, a dispute as to material facts exists. Since there is dispute over material facts, and defendant has not yet adequately addressed plaintiffs' claim as required by the applicable law, summary judgment as to the issue of disparate treatment is denied.

Plaintiffs' EEO complaint constitutes participation in the EEO process, which Title VII protects against reprisal. See 42 U.S.C.A. § 2000e-3(a). Many different employer actions can be viewed as retaliatory treatment; for example, retaliatory treatment may consist of harassment, disciplinary demotion, suspensions with pay, unjustified evaluations and reports, loss of normal work assignments, denial of letters of commendation, statements to prospective employers, or termination. See Barbara Lindemann Schlei and Paul Grossman, Employment Discrimination Law, Ch. 15, § V (2d ed. 1983).

1. Plaintiffs' First Retaliation Claim

Plaintiffs' first retaliation claim is comprised of three separate components. The first component alleges defendant subjected them to harassment and a hostile work environment in retaliation for filing their administrative complaint, and is advanced by all six plaintiffs. The harassment and hostile work environment of which plaintiffs complain consisted of: (1) defendant insisting that plaintiffs comply with the UDP; (2) OPS supervisors inspecting them at roll call to determine whether they were fit for duty; and (3) supervisors shouting at them on occasion when they were in violation of the UDP. This same alleged "harassment" and "hostile work environment" existed prior to plaintiffs' engaging in the protected activity, as their own evidence shows. As early as January 1993, four months prior to plaintiffs' claim, defendant was insisting that plaintiffs comply with the order and was inspecting them for possible violations of the policy. An inference of causation is improper under these facts. Since plaintiffs have not shown any credible evidence of causation, defendant's motion for summary judgment is granted as to the first component of plaintiffs' claim.

In the second component of their first claim, all six plaintiffs allege that they were disciplined in retaliation for filing their complaint. This claim also suffers for failure of a showing of causation. Plaintiffs' own evidence shows that they were being placed on absence without leave and suspended as early as March, 1993, while their discrimination complaint was not filed until May 6, 1993. Again, no inference of causation is proper, and defendant's motion for summary judgment is granted as to the second component of their first claim.

Since the fired plaintiffs have established a prima facie case, defendant bears the burden of articulating some legitimate, nondiscriminatory reason for his action. Defendant has produced evidence showing both Batson and Mathis engaged in objectionable non-protected activity. Defendant's uncontested evidence shows that on April 2, 1993, Batson wore a sign attached to her hair reading "I PROTEST" to roll call, while her hair was styled in violation of the order. She was ordered to report to the office of James Davis, OPS Deputy Chief, but instead left the building. On April 18, 1993, Batson reported to work in compliance with the UDP, but then let her hair down during duty. OPS supervisor Boomer requested Batson to comply; she first stated, "no, send me home," and later said, "no, I do not feel like it." (Def.'s Mot. for Summ. J. Ex. C.) Batson later requested leave from work on or about November 11, 1993. Her request was denied because she failed to provide proper medical documentation of the necessity for leave. Nonetheless, she did not show up for work from November 14, 1993, until January 8, 1994. That fact alone could justify defendant's adverse action.
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Defendant's uncontested evidence also shows that Mathis failed to report to work on January 16, 1994, February 5, 1994, and April 9 and 12, 1994. On March 29, 1994, she called a supervisor who was counseling her for violating the dress policy "stupid," and accused the same supervisor of abusing his authority, telling him to "use [his] better judgment, not [his] title or position to bother people." (Def.'s Mot. for Summ. J. Ex. C.) On May 10, 1994, she told a counseling officer that "It [was not her] fault if you are not getting any at home," implying she was being counseled because her supervisor was sexually frustrated. (Def.'s Mot. for Summ. J. Ex. C.) Defendant has shown Mathis was absent from work without excuse, insubordinate to her superiors, and grossly disrespectful of authority, all legitimate grounds for termination.

Since defendant has provided legitimate, nondiscriminatory reasons for the fired plaintiffs' dismissal, the fired plaintiffs must come forward with evidence showing that defendant's reasons are merely pretextual, and that defendant's proffered reasons are not the true and actual reasons for their termination. St. Mary's Honor Center, 113 S. Ct. at 2747. Batson and Mathis bear the ultimate burden of persuasion on the issue of whether they were the victims of intentional discrimination. St. Mary's Honor Center, 113 S. Ct. at 2748; Burdine, 450 U.S. at 253, 101 S. Ct. at 1093; Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.), cert. denied, 502 U.S. 861, 112 S. Ct. 181, 116 L. Ed. 2d 143 (1991). If the fired plaintiffs could show defendant's actions were more likely than not the product of intentional discrimination, the jury should find in their favor; but if they merely discredit defendant's proffered reasons, and show that they are unworthy of credence, the jury may infer that defendant's actions were discriminatory and find for the fired plaintiffs, although it is not required to make such a finding. Barbour v. Merrill, 310 U.S. App. D.C. 419, 48 F.3d 1270, 1276 (D.C. Cir. 1995); Nayar v. Howard Univ., 881 F. Supp. 15, 21 (D.D.C. 1995) (citing St. Mary's Honor Center, 113 S. Ct. at 2749).

Here, defendant's legitimate reasons for firing Batson and Mathis have gone unrebutted. The fired plaintiffs have not introduced evidence showing defendant's given reasons are pretextual, nor have they produced evidence to cast sufficient doubt as to the credibility of defendant's reasons. To avoid summary judgment, the fired plaintiffs are required to produce some objective evidence showing defendant's proffered reasons are mere pretext. This requirement demands no more than the Federal Rules of Civil Procedure, which require the non-moving party to demonstrate the existence of a dispute of material fact. See Villanueva, 930 F.2d at 129 (citing Liberty Lobby, 477 U.S. at 247-48, 106 S. Ct. at 2509-10). Even assuming Batson and Mathis had established a prima facie case of retaliatory firing, that presumption dropped from the case once defendant offered legitimate, nondiscriminatory reasons for their firing. The fired plaintiffs were repeatedly told they would be subject to disciplinary action if they failed to follow their supervisor's orders. Not only did they disobey direct verbal and written orders, but they were also insubordinate, absent without excuse, and insolent to their supervisors. Defendant is entitled to expect cooperation from his employees, and the firing of these plaintiffs under the circumstances before the Court was reasonable. Devera, 874 F. Supp. at 21 (D.D.C. 1995) (citing Paul v. Fed. Nat'l Mortgage Ass'n, 697 F. Supp. 547, 556 (D.D.C. 1988)). No material issue of fact remains, and defendant's motion for summary judgment is granted as to the third component of plaintiffs' retaliation claim.

Viewed in the light most favorable to plaintiffs, their allegations have satisfied the requirements for making out a prima facie case of retaliation under the McDonnell Douglas model. Filing a class complaint with the EEOC was a protected activity under Title VII. Denial of leave to attend a counseling meeting can qualify as an adverse employment action. There is a close proximity in the sequence of events, which raises a presumption of causation. Thus, defendant must present a legitimate, nondiscriminatory explanation for his adverse action.

Defendant has given a legitimate, nondiscriminatory reason for Captain Thompson's denial of leave: plaintiffs' request for leave -- to begin immediately -- was submitted without advance notice at 9:50 A.M., on a day on which Bailey, M. Harvey, T. Harvey, and Mathis were scheduled to start work at 10:00 A.M. Thompson worried that releasing the four security guards assigned to duty that day without opportunity to secure replacement guards would jeopardize the security of the art works on display. Since protection of the Gallery's art is OPS's primary responsibility, plaintiffs' request could not be accommodated on such short notice. In addition, plaintiffs were able to attend a counseling meeting on June 10, 1993, during non-public hours, suggesting plaintiffs were not disadvantaged by the initial denial of leave.

Plaintiffs have not offered evidence showing defendant's proffered reasons are pretextual, nor have they demonstrated that they were disadvantaged by defendant's actions. Title VII can be "misused in a futile attempt to resolve what are essentially problems attributable to insensitive personnel management, not to discrimination." Nance v. Librarian of Congress, 661 F. Supp. 794, 798 (D.D.C. 1987). Yates may have made an administrative error. The Mitchell case suggests that plaintiffs were entitled to administrative leave time to attend their counseling meeting. But cf. Jones v. Babbitt, 52 F.3d 279 (10th Cir. 1995) (limiting the scope of complainant activities requiring administrative leave time). Still, administrative errors are not discrimination. A policy that complainants were not owed administrative time for counseling suggests a nondiscriminatory explanation for Yates's position. Furthermore, from the record before the Court, it appears that Yates had nothing to do with the decision to deny administrative leave. Although she was contacted by plaintiffs' counsel that day, the decision to deny leave appears to have been made solely by Captain Thompson. Plaintiffs' only injury seems to be that Sumter was forced to take annual leave to attend the counseling meeting, and the rest of the plaintiffs had to wait 16 days to attend a counseling session. Plaintiffs bear the burden of proving that they have been the victims of illegal retaliation, and they have failed to produce evidence showing defendant's proffered reasons for denying administrative leave are pretextual. No conflict as to the material facts in question remains, and since there is no issue of material fact in dispute, defendant's motion for summary judgment on plaintiffs' second retaliation is granted.

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